RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01905
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150403
SEPARATION DATE:  20070130

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a reservist E-7 (Infantry Unit Leader) medically separated for a right knee condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The conditions “osteoarthrosis, localized [right knee]” and “contracture of lower leg joint” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “tricompartmental osteoarthrosis of the right knee” as unfitting, rated 20%, under criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The condition “flexion contracture of the right knee” was determined to be Category II (associated conditions which contribute to the unfitting condition).  The CI appealed to the Formal PEB, which affirmed the PEB findings and was then medically separated.

CI CONTENTION:  “Please consider all conditions.”

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service Recon – Dated 20060725	VA (5+ Mo. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Tricompartmental Osteoarthrosis, Right Knee	5299-5262	20%	Right Knee, Status Post Arthroscopy w/Residual Scars and Osteoarthritis	5260-5010	10%	20060816	
Flexion Contracture, R Knee	Category II	Right Knee Limitation of Extension	5261	20%	20060816	
Other x 0 (Not in Scope)	Other x 7		
Combined:  20%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20070613 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  There is a paucity of source clinical notes in the available service treatment record for this case.  The narrative summary (NARSUM) documents a twisting injury to the right knee in March 2004 during combat operations in Iraq, corroborated by an aid station note in-theater from August 2004.  The injury did not interfere with completion of the deployment.  There are no available clinic notes from the period of redeployment, but there is a magnetic resonance imaging report from October 2004; this demonstrating some degenerative cartilage changes (chondromalacia) and bone bruising; but, no meniscal tear or ligament injury.  The NARSUM documents a subsequent arthroscopy (the exact date cannot be ascertained from available evidence), and describes debridement of some loose bodies with intact menisci and ligaments.  There is an orthopedic note from December 2005 (14 months prior to separation) which states “pain well over 90% gone”; and, documents range-of-motion (ROM) as “10-15 degrees flexion contracture [e.g., minus 10-15 degrees extension], lacks 5 degrees flexion [normal 140 degrees].”  There is one more clinical note seven months later which indicates continued pain despite injections (Synvisc), although exam findings are mostly illegible.

The NARSUM was conducted on 28 April 2006 (9 months prior to separation).  It documented “continuing pain,” without elaboration of frequency and severity, and an inability to run or satisfy infantry physical requirements.  The examiner noted that conservative measures had been “helpful ... but suboptimally.”  The NARSUM did not document a hands-on physical exam, although the MEB’s DD Form 2808 recorded an antalgic gait.  The NARSUM did comment on physical findings by history, e.g., “The patient reported that he had loss of extension ever since the surgery.  He did indeed have a 10-15 degree flexion contracture with quad [quadriceps] atrophy.  He was sent to physical therapy and his contracture improved to 5-10 degrees [source exam unavailable].”

A VA Compensation and Pension (C&P) examination was conducted on 16 August 2006 (5 months prior to separation) and documented constant pain rated 4/10 “brought on by physical activities.”  The VA physical exam recorded a normal gait, crepitus without swelling or effusion, stability to stress testing in all planes, negative signs of cartilage impingement (mechanical locking), and normal strength (5/5) without atrophy of muscle groups.  The VA measured ROM was flexion 110 degrees and extension minus 15 degrees, annotating painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 20% rating was under analogous code 5262 (tibia and fibula, impairment of) for “moderate” knee disability.  The only higher rating offered by 5262 is 30% for “marked” disability.  The VA’s rating under 5261 (limitation of extension) was based on the 20% criterion of limitation to minus 15 degrees (minus 10 degrees confers 10%).  The VA’s additional 10% rating under 5260-5010 (limitation of flexion rated as traumatic arthritis) is an apparent violation of VASRD §4.14 (avoidance of pyramiding), since it was premised on painful motion already subsumed under the 5261 rating.  Separate ratings for flexion and extension are only permitted if there is compensable ROM limitation for each, and the evidence does not satisfy the minimum compensable threshold for code 5260 (flexion limited to 45 degrees).  Given the absence of joint instability, there is no VASRD §4.71a provision for separate joint ratings in this case.  The 20% rating under code 5261 was supported by the C&P evidence, but not by the Service evidence; and, even if the higher rating under 5261 is conceded, it offers no advantage over the PEB’s code and rating.  A 30% rating under 5299-5262 for “marked” knee disability was considered, but members agreed that the fairly restored functional status in evidence at separation was most reasonably characterized as moderate impairment.  Given the absence of ankylosis, there are no additional routes to a rating higher than 20% under §4.71a.  The disability from the Category II flexion contracture is subsumed by the rating language of 5299-5262, and is not eligible for separate ROM based rating (as above).  Members thus agreed that the Category II condition cannot be recommended for separate rating without pyramiding.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140423, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 20 Aug 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN